Curfew and Its Constitutional Limits: Analyzing the Judicial Standard of Review for Curfews in Times of Emergency

I.  Introduction

Curfews imposed against an entire civilian population are extremely rare. Despite this, the amount of curfews has skyrocketed in the United States in recent years as government officials use this sweeping power to respond to emergencies. The curfew is a method government officials employ to respond to a wide variety of emergency situations. Curfews impose severe limits on basic freedoms, so they are usually enforced only in times of perceived emergency. Officials have implemented curfews responding to violent unrest,1 managing disorder during natural disasters,2 controlling access to public areas during a pandemic,3 and curtailing alleged threats of subversion and sabotage during wartime.4 General curfews order an entire population in a geographic area to stay in their homes and prohibit them from entering public areas during certain designated times.5 Almost all curfews exempt law enforcement and medical personnel.6 Other curfews exempt members of the press and certain activities, like limited travel for business purposes, during curfew hours.7

As a historical matter, governments rarely employ mass curfews.8 Consequently, there have been few opportunities to raise judicial challenges and establish a clear standard of review for the lawfulness of certain curfews. Amidst such uncertainty, the amount of curfews instituted in 2020 dramatically increased as cities relied on curfews to control movement.9 For instance, many cities used curfews as a tool to limit movement and control the spread of COVID-19.10 In 2020, eighty cities passed curfews relating to civil unrest accompanying the largely peaceful Black Lives Matter (BLM) protests against police brutality.11 Some cities even instituted curfews restricting the ability to be outside as early as 4 p.m.12 In 2025, in response to protests against federal immigration raids, Los Angeles imposed a ten hour curfew starting at 8 p.m. in downtown areas due to vandalism and looting.13 The recent rise of general curfews as an emergency tool raises pressing constitutional questions.

Short of martial law, the curfew is among the most extreme forms of disaster response that can be imposed on a civilian population. When curfews are imposed, the judiciary plays a vital oversight role to ensure government officials do not violate constitutional rights. Curfews burden several constitutional rights, including the right to travel and the right to speak in public forums. Speech and movement are prerequisites to practically almost all meaningful participation in society and are protected by the Constitution.

Whenever constitutional rights are implicated by the exercise of government power, courts employ a standard of review to assess whether the regulation is consistent with constitutional rights. The standard of review is critical as it determines the strength of the required government interests at stake and the degree of tailoring needed to advance that interest.14 In part, the type of curfew determines the level of constitutional scrutiny. The circuits are split as to the correct standard of judicial review for mass curfews, meaning the level of constitutional scrutiny will also vary based on which circuit has jurisdiction. Strict scrutiny, the highest standard of review, requires a compelling government interest and that the means of advancing that interest be narrowly tailored. In contrast, rational basis scrutiny, the lowest standard of review, merely requires the government action be rationally related to a legitimate government interest and is usually easily satisfied. These tailoring requirements control how courts balance competing interests when evaluating a curfew. Some circuits employ an extremely deferential model of review for general curfews (similar to rational basis review), others apply intermediate scrutiny, and some courts apply strict scrutiny.15

There are two types of curfews: general and targeted. General curfews apply to all citizens, while targeted curfews are imposed only against a specific group, such as the curfew the Supreme Court upheld which only applied to Japanese Americans in World War II.16 Curfews targeting racial or ethnic groups are subject to strict scrutiny under the Fourteenth Amendment.17 Juvenile curfews are another form of targeted curfew, and are subject to competing standards of review.18 The Supreme Court has not ruled on the proper standard of review for general curfews that apply to an entire adult population and do not discriminate based on a suspect class. The proper standard of review for general curfews is the focus of this Comment.

This Comment will first evaluate the constitutional rights implicated by general curfew orders, namely the right to travel and right to speak in public forums. Then, the Comment will survey the current circuit split. Lower courts significantly diverge in their standard of review of curfew orders and apply three very different forms of review: deference, intermediate scrutiny, and strict scrutiny. This Comment argues that courts should subject general curfew orders to strict scrutiny. Additionally, this Comment also contends that challenges to general curfews on right to travel grounds are a valid, but neglected, route for petitioners. General curfews directly abridge both intrastate and interstate travel. Moreover, the right to travel provides an independent hook to apply strict scrutiny when a court determines that lesser scrutiny applies on First Amendment grounds. Ultimately, curfew cases should not exist in a vacuum divorced from normal constitutional analysis.

II.  General Curfews and the Abridgement of Constitutional Rights

States have broad police powers to declare emergencies and impose curfews in response to emergencies.19 However, curfews, like other forms of police power, must respect constitutional rights.20 This section details some key constitutional rights impacted by the use of a general curfew.

A.  The Right to Travel

A curfew obviously impinges on the right to travel because it arrests movement and confines people to their homes. While the Supreme Court has repeatedly affirmed that the right to travel is a constitutional right, judges have located the source of this right in different places. The Third Circuit helpfully lists potential bases for the right to travel, which include the Privileges and Immunities Clause, the “structural logic of the Constitution,” the Commerce Clause, the Equal Protection Clause, and the Due Process Clause.21 However, there is no settled authority for the right to travel, and some may be skeptical of this right because it is not enumerated in the Constitution.

This Comment contends that the strongest argument for the constitutional right to travel is that it is one of the quintessential privileges and immunities recognized in the Constitution.22 Justice Washington, riding circuit, in Corfield v. Coryell23 defined privileges and immunities as claims which “are, in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several states which compose this Union, from the time of their becoming free, independent, and sovereign.”24 Corfield identified “[t]he right of a citizen of one state to pass through, or to reside in any other state, for purposes of trade, agriculture, professional pursuits, or otherwise” as falling under the ambit of the Privileges and Immunities Clause.25

During the ratification of the Fourteenth Amendment, the drafters relied heavily on the Corfield framework, which articulated the right to travel as a right under the general law.26 As William Baude, Jud Campbell, and Stephen Sachs explain, the drafters believed that the Fourteenth Amendment “secured but did not confer” unwritten rights in the general law.27 The general law “was conventionally unwritten law, derived from general principles and customs and operating across jurisdictions.”28 The right to travel fits here like a glove: it is an unwritten right, it has a long tradition based in convention, and interstate travel operates across state jurisdictions.29 Jacob Howard, a key drafter of the Fourteenth Amendment, stated that privileges and immunities “cannot be fully defined” by drafters within the Fourteenth Amendment.30 This suggests that the drafters of the Fourteenth Amendment never intended to enumerate all potential rights under general law and instead would have courts elaborate on existing general law rights.

As Baude, Campbell, and Sachs note, the key move of the drafters was to secure privileges and immunities from racist interference in the Southern states by moving the unresolved questions about privileges and immunities to federal courts, which could better safeguard these rights.31 The invocation of privileges and immunities in the Fourteenth Amendment is much more concerned with providing judicial remedies than detailing the essence of specific rights. As the drafters were primarily concerned with remedies, this explains why the drafters did not enumerate all general rights and instead imported an existing general law framework. Therefore, demanding that the Privileges and Immunities Clause specifically enumerate rights in the text misunderstands the enterprise of the drafters.

The foregoing does not mean we are left completely without answers with respect to the scope of the right to travel. In introducing the Fourteenth Amendment to the Senate, and discussing the Privileges and Immunities Clause, Howard cited Corfield v. Coryell and read from it at length, including the quoted line about the right to travel above.32 Howard argues that the Fourteenth Amendment incorporates these understood privileges and immunities and adds the rights under the first eight amendments to the Constitution.33 Thus, there is strong evidence that the right to travel under the original understanding of the Fourteenth Amendment was one of the basic aspects of “general law” federalized by the passage of the Fourteenth Amendment. The amendment was not designed to grant a new “right to travel,” but instead granted federal courts jurisdiction to enforce violations of existing general law rights and grant remedies.34 If general curfews violate individual rights to travel and federal courts fail to intervene and provide a remedy, they betray the fundamental intent and operation of the Fourteenth Amendment’s Privileges and Immunities Clause.

Moving beyond the text and original understanding of the Fourteenth Amendment, precedent also provides strong support for a constitutional right to travel. The right to travel has a long pedigree that is explicitly recognized in a multitude of Supreme Court decisions. In Saenz v. Roe,35 the Supreme Court recognized that the right to travel between states “is firmly embedded in our jurisprudence.”36 In Shapiro v. Thompson,37 the Supreme Court noted that “the nature of our Federal Union and our constitutional concepts of personal liberty unite to require that all citizens be free to travel throughout the length and breadth of our land uninhibited by statutes, rules, or regulations which unreasonably burden or restrict this movement.”38 In United States v. Guest,39 the Supreme Court explained that “[t]he constitutional right to travel from one State to another, and necessarily to use the highways and other instrumentalities of interstate commerce in doing so, occupies a position fundamental to the concept of our Federal Union.”40 Many other cases have affirmed this right to travel principle going even further back.41

Some may argue that there is no fundamental right to travel and so subjecting curfews to a higher degree of scrutiny is inappropriate. They might point to the Court’s recent ruling in Dobbs v. Jackson Women’s Health Organization.42 There the Court ruled that the Constitution does not grant an implied due process right to obtain an abortion because the right to an abortion is not in the text of the Constitution nor “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.”43

The right to travel has one of the deepest traditions in the United States. This custom stretches back to the Magna Carta, stating that “merchants may enter or leave England unharmed and without fear, and may stay or travel within it, by land or water, for purposes of trade, free from all illegal exactions, in accordance with ancient and lawful customs.”44 Richard Sobel documents how influential thinkers from William Blackstone to Thomas Jefferson regarded the right to travel as a natural right.45 The Articles of Confederation also explicitly granted a right of interstate travel where “the people of each state shall have free ingress and regress to and from any other state.”46 Thus, if the right to travel cannot be satisfied under Dobbs, then there are plausibly no implied rights under the Constitution.47

Even if a judge is unpersuaded by the originalist case for a right to travel offered above, there are weighty stare decisis reasons to reaffirm a constitutional right to travel. Courts should be extremely hesitant to overrule long-established precedent because individuals and states rely on the principle and pass statutes under the backdrop of established law.48 Thus, respecting precedent allows courts to adjudicate cases in a stable and even-handed manner.49 Finally, adhering to precedent avoids the danger of casting away decisions with imbued wisdom.50 Weighty precedent should only be overruled when prior precedent is egregiously wrong and seriously threatens legal rights.51 The right to travel precedent comes nowhere near the demanding standard to overrule this rich line of case law.

B.  The First Amendment

There is no dispute that the First Amendment is a fundamental right incorporated against the states under the Fourteenth Amendment.52 Citizens have the right to engage in speech in traditional public forums.53 Curfews necessarily limit the ability to speak in these forums during curfew hours. However, there is dispute over what standard of review to apply and whether general curfews are best classified as a direct or indirect limit on speech rights. The next section will address these points.

C.  The Fourteenth Amendment

The use of curfews may sometimes lead to unconstitutional discrimination under the Fourteenth Amendment. The Fourteenth Amendment ensures that people receive the “equal protection of the laws,” and bars certain forms of discrimination practiced by the state.54 Two forms of improper discrimination include discrimination carried out with invidious purpose and laws that create strong disparate impacts. A neutral law that has the invidious purpose to discriminate based on race is invalid under the Fourteenth Amendment.55 Curfews also have a long, racist history of being deployed against African Americans, so there may be an invidious discrimination challenge to some curfews under certain circumstances.56

Courts will also sometimes invalidate facially neutral laws that have strong disparate effects on racial groups.57 The Court in Village of Arlington Heights v. Metropolitan Housing Development Corp.58 listed several factors to determine if a facially neutral law can be invalidated under the Fourteenth Amendment.59 General curfews, while neutral on their face, will often create disparate impacts against certain racial groups and protest movements. It is not surprising that curfews imposed in the aftermath of Martin Luther King Jr.’s assassination and the BLM protests against police killings of African Americans had disparate racial impacts. Thus, a curfew with extreme disparate effects and conditions that satisfy the Arlington Heights factors may be sufficient for an as-applied challenge to a curfew under the Fourteenth Amendment.

Finally, curfews invite a danger of arbitrary enforcement, a separate viable claim under the Fourteenth Amendment. Arbitrary enforcement violates due process under the Fourteenth Amendment if a law does not contain “minimal guidelines” and so allow law enforcement to engage in a “standardless sweep” of areas based on the complete discretion of individual officers.60 A curfew could be written with clear guidelines that constrain arbitrary discretion and do not violate due process. However, the potential for arbitrary enforcement is a concern that lurks behind most curfews. These Fourteenth Amendment issues are case-specific and will depend on how a curfew regulation is drafted or enforced in practice. Thus, these due process claims often will have to be brought through an as-applied challenge that varies from curfew to curfew.

Unlike as-applied Fourteenth Amendment claims, the right to travel and First Amendment rights are implicated by every general curfew. This Comment has argued that there is a strong constitutional case for both the right to travel and the right to speak in public forums. Such travel and speech claims can be brought by a large number of potential plaintiffs, which mean these issues are more generally applicable and likely to find well-situated plaintiffs. Accordingly, this Comment will focus its analysis on travel and speech rights.

III.  The Current Circuit Split on the Standard of Review

This Part reviews the differing approaches of the circuits when applying a standard of review for curfews. The result is that the same curfew could be assessed very differently depending on where the curfew is enforced. This is quite troubling because our Constitution secures certain rights that are the inheritance of all citizens no matter where they reside. The current three standards are deferential review, intermediate scrutiny, and strict scrutiny.

A.  Developing the Deferential Standard of Review

Some of the earliest general curfew lawsuits were subject to a deferential standard of review and failed to grapple with the individual constitutional rights at stake. The most infamous case of deference to executive authority during a curfew was Hirabayashi v. United States.61  This case arose during World War II when the United States military imposed a curfew on only those of Japanese ancestry, confining such individuals to their homes from 8 p.m. until 6 a.m.62 Gordon Hirabayashi was arrested for being outside his home during the curfew, and was convicted and sentenced to three months in prison.63 The Supreme Court ruled that the curfew was a valid exercise of executive wartime power because the Commander in Chief’s power to wage war encapsulates “every phase of the national defense” and necessarily grants the executive a “wide scope for the exercise of judgment and discretion in determining the nature and extent of the threatened injury or danger and in the selection of the means for resisting it.”64 The Court deferred to the executive so long as the military had “reasonable ground for believing the threat is real.”65 The Court noted that the United States was at war and it was unclear how many Japanese Americans were disloyal. This alleged disloyalty could justify imposing a targeted curfew on just Japanese Americans.66 In summary, Hirabayashi established that during times of war the Court will give extreme deference to military operations, including curfews, to meet military objectives so long as there is a “reasonable basis” for believing there is a threat to the country.67 While the Court did not use the exact phrase “rational basis review,” this standard mirrors this highly deferential standard of review. Importantly, once the factual basis for a threat is established, the Court will not subject the curfew order to enhanced scrutiny that involves narrow tailoring or ensuring that the curfew is a necessary means to responding to the threat. As this section will show, this extreme deference has resulted in courts failing to protect constitutional rights.

1.  The Fourth Circuit consolidates the deference standard

The most prominent example of a court extending Hirabayashi’s deference is the Fourth Circuit. In United States v. Chalk,68 the court evaluated a constitutional challenge against a peacetime curfew from 9 p.m. until 6 a.m. in response to a violent clash in a high school.69 The court ruled against a First Amendment overbreadth challenge because they found the curfew only incidentally burdened speech and the curfew was “reasonably necessary to the preservation of order.”70 Following similar logic, the court said that the curfew did not violate the right to travel because this right is subject to reasonable regulation and the curfew was reasonable.71

The Fourth Circuit determined the curfew was reasonable under a deferential standard of review. Ultimately, the court would not scrutinize the decision to impose a general curfew so long as the government official had a “factual basis” to impose the curfew and the official acted in good faith (hereinafter Chalk Deference).72 The court said it would be inappropriate to substitute the judgment of the executive with the judgment of a court that has “the benefit of time for reflection.”73 There was a factual basis for imposing the curfew because there was violence at a high school involving broken windows. The court worried that a higher level of scrutiny would eliminate the discretion “necessary for the executive to deal with an emergency situation.”74 Chalk Deference proved highly deferential and was most strongly echoed by the Eleventh Circuit.

2.  The Eleventh Circuit follows the Fourth Circuit

The Eleventh Circuit applied Chalk Deference in Smith v. Avino75 to a constitutional challenge on both right to travel and First Amendment grounds.76 A general curfew was imposed from 10 p.m. until 5 a.m. after Hurricane Andrew caused widespread destruction.77 The plaintiff in Smith conceded that the hurricane created emergency conditions, but argued that the curfew was an overbroad and unconstitutional way of responding to the emergency.78 The Eleventh Circuit stated that in times of emergency,fundamental rights like free speech and travel “may be temporarily limited or suspended.”79 The court upheld the constitutionality of the curfew and ruled that “governing authorities must be granted the proper deference and wide latitude necessary for dealing with the emergency.”80 The Eleventh Circuit approvingly cited Chalk and ruled that a general curfew order would be upheld if there was a factual basis behind the curfew and it was imposed in good faith.81 Once again, the rights claim was quickly dispatched by a holding that the curfew was reasonable under a very deferential standard.

In a recent case, a district court in Florida upheld the constitutionality of a curfew imposed during the COVID-19 pandemic, ruling that courts should be deferential to governing authorities in times of emergency.82 This case demonstrates that ChalkDeference is still often applied for curfews in times of natural disaster. The Eleventh Circuit is extremely deferential when reviewing curfews, and this region is subject to a disproportionate amount of natural disasters.83

In summary, the Fourth and Eleventh Circuits are deferential to government officials when they impose general curfews. These courts find that there are no valid speech or travel claims if officials impose a reasonable curfew. The only requirements for reasonableness are that there be a factual basis for the emergency and that the official acted in good faith. This is a very easy standard to meet because usually plaintiffs will concede that there is an emergency but dispute that the curfew was a narrowly tailored way to respond to the crisis. Chalk Deference is an outlier and diverges from the standard applied by the Second, Third, Ninth, and D.C. Circuits. No other circuit applies as much deference as the Fourth and Eleventh Circuits.

B.  The Intermediate Scrutiny Standard of Review

This section considers the circuits that apply intermediate scrutiny to assess a general curfew under either First Amendment or right to travel challenges. In the First Amendment context, general curfews are sometimes viewed as a regulation of the time, place, and manner of expression. Time, place, and manner restrictions require a regulation to be content-neutral, narrowly tailored, and leave open ample alternative channels for communication.84 In a right to travel claim, intermediate scrutiny requires the government show that the regulation satisfies an important government interest and is narrowly tailored to advance that interest.85 Intermediate scrutiny is more demanding than the Chalk Deference, but is less demanding than strict scrutiny.

1.  The Ninth Circuit applies intermediate scrutiny for First Amendment claims

The Ninth Circuit breaks from the Fourth and Eleventh Circuits and applies a less deferential standard of review for general curfews in the First Amendment context. In Menotti v. City of Seattle,86 the Ninth Circuit evaluated a curfew imposed in Seattle to help secure the city during a meeting of the World Trade Organization.87 The court only analyzed a facial challenge to the curfew on First Amendment grounds and not for a right to travel claim.88 Since the curfew implicated First Amendment rights to speak and publicly assemble, the Ninth Circuit determined the curfew’s constitutionality under the time, place, and manner framework, a form of intermediate scrutiny.89 Because Menotti did not consider a right to travel claim, it is unclear if the Ninth Circuit would apply a different standard of review for travel claims.

In 2023, a district court within the Ninth Circuit repudiated Chalk Deference in Boudjerada v. City of Eugene.90 This case involved a First Amendment challenge to a curfew imposed due to civil unrest from BLM protests in Oregon.91 The court ruled, following Menotti, that intermediate scrutiny, rather than Chalk Deference, was the proper standard of review for the First Amendment claim.92 As in Menotti, the district court only considered a challenge to a curfew on First Amendment and not right to travel grounds.93 The district court explained that restrictions on speech “must be appropriately limited” because “First Amendment rights do not give way simply because they are expensive or difficult to maintain.”94 Applying intermediate scrutiny, the district court held the curfew was not narrowly tailored because it was applied to the entire city and not limited areas where there were specific outbreaks of violence.95 Thus, the curfew was overbroad.

Additionally, the district court held that the curfew failed to leave open ample alternative channels of communication because it shut down all speech in public areas.96 The court was unmoved by the city’s argument that there were ample channels because the curfew was at night and protesters could protest during the day. The court explained that the curfew was imposed amid protests against police brutality and “in the context of protests that are a reaction to a recent event, there is an immediacy that distinguishes this from other cases in which the time of protest matters less.”97 For these reasons, the curfew failed intermediate scrutiny.

In NAACP of San Jose/Silicon Valley v. City of San Jose,98 a California district court also applied intermediate scrutiny to a curfew in response to civil unrest during the BLM protests.99 The court dedicated the bulk of its analysis to the First Amendment question. The court noted that Menotti was decided after a significant amount of evidence was presented, and a “court cannot rule on the issue of whether the curfew order was narrowly tailored without more facts regarding the nature of the disorder which the curfew sought to prevent.”100 The court said a city cannot invoke “the specter of property damage” to stop curfew challenges from advancing beyond the motion to dismiss stage.101 The court also distinguished this case from Menotti because the San Jose curfew applied to the entire city, while in Menotti the curfew only applied to a more limited area affected by protests.102 Accordingly, the court refused to dismiss the First Amendment claim.

The plaintiffs in NAACP v. San Jose also brought a claim that the curfew limited their right to “freedom of movement.”103 However, the court dismissed this claim and stated the plaintiffs “have not adequately shown a basis for a standalone cause of action for freedom of movement.”104 The district court’s decision is inconsistent with originalism and decades of established precedent.105 As noted above, there is an extensive body of law and history for the existence of the constitutional right to travel.106 If one reads the court as faulting the defendants for invoking “freedom of movement” rather than freedom of interstate travel, then this seems like an overly technical dismissal that fails to engage with the true substance of the complaint.

In summary, the Ninth Circuit applies intermediate scrutiny to assess general curfew orders on First Amendment grounds. Courts in this circuit are more willing to let a claim advance beyond the motion to dismiss stage so that plaintiffs can gather facts so a court can assess narrow tailoring and whether there are ample alternative channels of communication.107 NAACP v. San Jose demonstrates that courts within the Ninth Circuit may be more receptive to First Amendment constitutional challenges to general curfews advancing beyond the motion to dismiss stage. This ability to survive a motion to dismiss is critical because under Chalk Deference a plaintiff will lose their constitutional claim the moment they concede that there was an emergency and the official acted in good faith. However, intermediate scrutiny grants courts copious latitude to uphold curfews. While Boudjerada held that there were no ample alternative channels in the particular case, the Ninth Circuit has not reached a firm conclusion that curfews always deprive individuals of ample alternative channels. For example, it is possible the Ninth Circuit may hold that a curfew applying only at night leaves open ample alternative channels because protests can occur during the day.

The Ninth Circuit has not substantively engaged with the standard of review for curfews that burden the right to travel. This may be because plaintiffs have failed to meaningfully advance these claims, but some lower courts may not be very receptive to these right to travel arguments.108 Because the Ninth Circuit has not directly ruled on a curfew right to travel claim, plaintiffs can still bring a compelling argument that a general curfew should be subject to strict scrutiny independent of any First Amendment standard.

2.  The D.C. Circuit applies intermediate scrutiny to First Amendment claims

The D.C. Circuit applies intermediate scrutiny to First Amendment challenges against general curfews because curfews block the ability to speak and assemble in public forums. In Tinius v. Choi,109 the D.C. Circuit considered a First Amendment challenge to a curfew imposed during BLM protests where there was property damage across the city.110 The plaintiff was arrested during curfew hours while peacefully standing on a public street protesting police violence against African Americans.111 The court applied intermediate scrutiny under the time, place, and manner framework.112

The court found the curfew was content-neutral because it applied to all persons.113 Additionally, the court ruled the curfew was narrowly tailored because it was similar to the curfew upheld in Menotti: the curfew was of a limited duration, it contained exceptions, and it was necessary to limit expression in public areas to identify those engaging in unlawful activity at night.114 Finally, the court found there were ample alternative channels because the plaintiffs could have protested during the day or after the curfew expired.115

The plaintiffs raised a right to travel claim to the D.C. Circuit but failed to raise it at the district level, thus forfeiting the argument.116 The court declined to address whether there was an intrastate right to travel.117 As such, the standard of review for right to travel claims is currently unresolved. However, it is possible an appropriately briefed right to travel claim may be subject to higher scrutiny.

3.  The Third Circuit applies intermediate scrutiny in right to travel claims

It is possible, though not fully resolved, that the Third Circuit will apply intermediate scrutiny to curfew regulations on right to travel grounds. While the Third Circuit has not ruled directly on a right to travel claim for curfews, it has ruled on related laws that constrain movement. In Lutz v. City of York,118 the Third Circuit evaluated the constitutionality of a law that banned “cruising,” or repeatedly driving around the city in a loop.119 The Third Circuit found that there is a right to intrastate travel that is implicated by the anticruising ordinance but determined the proper standard of review was intermediate scrutiny.120 Although this was not a curfew case, curfew restrictions burden intrastate travel, so they would be subject to at least intermediate scrutiny and not Chalk Deference. When a curfew is imposed, one no longer has the ordinary range of movement to travel within a state. A curfew also poses much heavier burdens on intrastate travel than a regulation prohibiting driving in a loop. The cruising ordinance limited the ability to drive repeatedly around a destination, but a curfew completely bars the ability to travel to some destinations entirely.

Lutz is not dispositive for the standard of review for curfews in the Third Circuit. The Third Circuit might apply strict scrutiny to a curfew ordinance because of the burdens to the right of First Amendment speech in public spaces, though this question is not resolved. The Third Circuit may also rule that a curfew limits the ability to engage in interstate travel, justifying elevated constitutional scrutiny beyond limits on just intrastate travel. Finally, the circuit might apply strict scrutiny because a curfew is a much more severe burden on intrastate travel than a cruising ordinance. Finally, the Third Circuit could also follow a different line of logic and argue that emergency conditions, not present with the cruising case, justify suspending constitutional scrutiny and applying Chalk Deference.

C.  Curfews and Strict Scrutiny

This section reviews the circuits that apply, or are likely to apply, strict scrutiny to a general curfew. Strict scrutiny requires that a regulation satisfy a compelling government interest, be narrowly tailored, and be the least restrictive means of satisfying that interest.121 Circuits that apply strict scrutiny have focused on the right to travel. This suggests that courts may be more receptive to applying strict scrutiny when the right to travel is abridged by a general curfew.

1.  The Second Circuit deepens the circuit split and applies strict scrutiny

The Second Circuit diverges from other circuits and applies strict scrutiny to general curfew orders. In Ramos v. Town of Vernon,122 the Second Circuit struck down a juvenile curfew as unconstitutional.123 The court noted that curfews infringe on the right to engage in interstate travel.124 Additionally, the Second Circuit recognizes an explicit right to intrastate travel.125 The court applied intermediate scrutiny to evaluate juvenile curfews, but stated: “[b]ecause the curfew limits the constitutional right to free movement within the Town of Vernon at certain hours of the night, we assume that were this ordinance applied to adults, it would be subject to strict scrutiny.”126 Thus, a general curfew order that generally restricts the intrastate or interstate right of travel of adults is subject to strict scrutiny in the Second Circuit.

The Second Circuit affirmed Ramos when it considered a challenge to a curfew order imposed in New York City during the civil unrest and BLM protests relating to the murder of George Floyd.127 New York City imposed a curfew that lasted one week and overlapped with movement restrictions applied to control the spread of COVID-19.128 The court upheld the curfew under strict scrutiny because it was enacted to meet a compelling interest of restoring public order and protecting public health.129 The court also found the regulation was narrowly tailored because the regulation had exceptions, such as provisions for emergency personnel, those performing essential work, and the homeless.130 The court was also persuaded by the fact that city officials considered other alternatives (such as National Guard intervention), the curfew was for a limited scope connected to times where the city experienced the most violence and property damage, and the curfew was limited to nighttime hours which allowed the exercise of rights during the day.131

2.  The Sixth Circuit implies it will apply strict scrutiny to travel claims

The Sixth Circuit also will likely apply strict scrutiny to general curfew orders. In Johnson v. City of Cincinnati,132 the Sixth Circuit struck down an ordinance which barred people who had a history of drug abuse from accessing certain public areas of the city.133 The court ruled that there is an intrastate right of travel that enables people to “travel locally through public spaces and roadways [which] enjoys a unique and protected place in our national heritage.”134 The Sixth Circuit subjected the ordinance to strict scrutiny and noted that a more narrowly tailored version of the statute may survive this standard.135 A strong analogy can be made between the ordinance in Johnson and a general curfew order. Both regulations prohibit people from accessing public areas of the city and also sharply limit the ability to engage in intrastate travel. An even stronger argument can be made for enhanced scrutiny for a general curfew because it also sharply limits the ability to engage in interstate travel, unlike in Johnson where those with a history of drug use could still leave the city and travel between states.

Still, there are some reasons why the Sixth Circuit may subject a general curfew order to a lower standard of review. First, the drug ordinance in Johnson applied at all times, but a court may be more deferential in a time of temporary emergency. Second, the ordinance targeted individuals who engaged in drug abuse, and a court may be less skeptical of an ordinance that applies to the entire population rather than marginalized populations. A court may more favorably view a regulation that does not single out a small, politically weak group for adverse treatment. Third, some prior precedents have applied a lower standard of review for curfews. In 1971, the Sixth Circuit in Bright v. Nunn136 upheld a two-day curfew imposed in response to civil unrest at the University of Kentucky.137 The Bright court applied a version of ChalkDeference and upheld the curfew because there was no evidence that government officials acted in bad faith and there was factual evidence of the existence of an emergency.138 A way to distinguish Bright from a general curfew case is that Bright occurred in a school context and the court emphasized that school officials “must be given wide authority in maintaining discipline and good order on campus.”139 A general curfew extending beyond campus may be subject to more rigorous scrutiny. Additionally, Bright was decided prior to Johnson. If the Sixth Circuit applies strict scrutiny to an ordinance that limits the intrastate movement in a narrow area for certain individuals, it follows that the same standard should apply to a curfew order that applies to all individuals across a much wider area.

In summary, the Sixth Circuit has not established a constitutional standard of review for a general curfew on First Amendment grounds. In Johnson, the Sixth Circuit implies that it will subject a regulation abridging the intrastate right to travel to strict scrutiny. Because a general curfew sharply limits the ability to engage in intrastate and interstate travel, there is an excellent case that Sixth Circuit precedent compels the application of strict scrutiny for right to travel claims.

IV.  Assessing the Standard of Review

This Comment argues that the deferential standard of review and intermediate scrutiny are inadequate to safeguard fundamental constitutional rights abridged by general curfew orders and that direct abridgements of constitutional rights should be subject to strict scrutiny. General curfew orders directly abridge the fundamental rights to travel and speak in public forums. Therefore, general curfews should always be subject to strict scrutiny.

A.  The Deferential Standard of Review and General Curfews

Generally speaking, the circuits that have accepted the logic of Chalk Deference expressed concern that a strict standard of judicial review would constrain executive action and make it harder to protect the public and respond flexibly to emergencies.140 The Fourth Circuit was extremely hesitant to have the judiciary weigh in on the constitutionality of a curfew. This is because courts have “the benefit of time for reflection not available” to the executive and the executive has more expertise navigating disasters in the moment than courts.141 Many courts have also accepted what Eric Posner and Adrian Vermeule term the Accommodation View, which is that “the Constitution should be relaxed or suspended during an emergency.”142 A district court adopted something similar to the Accommodation View when assessing the validity of a nighttime curfew imposed in response to union strikes.143 The court refused to enjoin the curfew and found that the government was likely to succeed on the merits.144 The court stated: “There can be no question that, in ordinary circumstances, the imposition of a general curfew would unconstitutionally abridge rights guaranteed by the first amendment. The circumstances presented in this case are clearly not ordinary circumstances.”145 The court found that the potential for general strikes threatened public order to a serious extent and that limits on constitutional rights held in ordinary times could be limited.146 Chalk Deference should be read as an endorsement of the Accommodation View. Thus, claims that courts should defer to the expertise of executives to respond to emergencies and ordinary constitutional principles do not apply.

Some may object, arguing that the Supreme Court no longer endorses this logic of extreme deference and that cases like Hirabayashi are functionally dormant. The Supreme Court overruled Korematsu v. United States,147 which upheld Franklin Delano Roosevelt’s internment of Japanese Americans.148 One might think Korematsu’s fall also undermined Hirabayashi. However, there are several reasons to think that the model of extreme deference in Hirabayashi survived. First, while the Supreme Court overruled Korematsu, it never mentioned Hirabayashi.149 Second, in Korematsu, the Supreme Court paid special attention to the government’s singling out of a group “solely and explicitly on the basis of race.”150 If a curfew order was imposed based on military necessity that only applied to a specific racial group, this order would be subject to strict scrutiny.151 However, the Supreme Court has not ruled out extreme deference to a general curfew order imposed on an entire population. A court may be quite deferential in these situations because in Trump v. Hawaii, the Supreme Court overruled Korematsu but then applied a very deferential standard of review to executive orders that barred immigration from certain countries.152 In effect, the Supreme Court overruled Korematsu but reincarnated its logic of deference to executive orders.153

There are several reasons why Chalk Deference, and the logic it drew upon from Hirabayashi, should be rejected. That is, ChalkDeference grants excessive deference to the government and fails to adequately secure constitutional rights. The power to enforce curfews is derived from the state police power to pass laws to promote the public welfare. However, all exercises of the police power are subject to constitutional limitations, including those which protect the right to speak in public forums and the right to travel. There is also nothing in the text of the Constitution which allows suspension of constitutional rights during times of emergency.154

The Chalk standard is incredibly deferential. First, Chalk purports to analyze whether an official action is taken in good faith. However, this standard is incredibly easy to meet because the courts do not inquire deeply into the motives of officials. The Supreme Court has declared that “[i]nquiries into congressional motives or purposes are a hazardous matter.”155 Further, the Supreme Court recently limited the ability of courts to investigate presidential motive when it comes to unofficial acts.156 These cases, at the least, demonstrate the judiciary’s extreme unwillingness to question and second-guess the motives of government officials that impose curfews.

Even if a court is willing to thoroughly investigate the motives of officials, it is unlikely to matter much because most officials operate in good faith, or it is at least not easy to prove officials generally operate in bad faith. Just as a plaintiff is often willing to concede that there is a factual basis for an emergency, they will often concede the official made the decision in good faith. What matters is not the good faith of an official, but rather whether people have had their constitutional rights violated. Courts must guard against all kinds of constitutional violations, even those done in good faith. As John Adams once said, “[p]ower always thinks . . . it is doing God Service, when it is violating all his Laws.”157 Officials derive their power from law and so it is legal authority, and not official motives, that should drive the resolution of constitutional claims. Courts should police violations of law and only police good faith when it has a bearing on a legal question.158 Individuals do not derive their right to travel and speak from an official’s good grace, so beginning and ending with a motive inquiry is inappropriate.

One reason why courts should be cautious about employing a deferential standard of review during wartime or other times of emergency is that courts have a history of failing to protect fundamental rights. Hirabayashi should be regarded as a great failure of the Supreme Court and part of the “anticanon” where future courts avoid the errors made in the case.159 But this Comment has argued that Chalk Deference has reincarnated much of the logic of Hirabayashi, which is deeply concerning for those that want to safeguard fundamental rights during emergencies.

The historical failure to protect constitutional rights is most notable in the First Amendment context. In his survey of the history of the First Amendment, legal scholar Geoffrey Stone found that, time and time again, courts failed to protect First Amendment rights and deferred to executive power in times of perceived emergency.160 The most deplored eras of First Amendment suppression occurred by courts deferring to executive power, such as during the Alien and Sedition Acts, the Espionage Acts, and Red Scare.161 In contrast, some of the most celebrated First Amendment decisions have applied more rigorous scrutiny to protect minority groups in the face of inflamed majoritarian sentiment.162 Legal scholars James Weinstein and Ivan Hare surveyed how democracies respond to speech in times of crisis and find that “democracies tend to overreact to what at the time seemed to be imminent threats to core societal values.”163

The interests implicated by curfews during natural disasters are especially susceptible to manipulation or exaggeration by government officials. Many curfews are imposed in response to natural disasters to control widespread looting and crime.164 However, an empirical survey of the emergency response to Hurricane Katrina found that most of the reports of violence and looting were “little more than figments of frightened imaginations.”165 Mitchell Crusto found that “in a rush to ensure public safety and the protection of property, some government officials abused people’s rights” through the imposition of harsh methods like curfews, and the legal system failed to adequately compensate people for these rights violations.166 To protect these rights, Crusto argues that the courts should apply strict scrutiny.167 Legal scholar Lisa Grow Sun concurs that officials during Hurricane Katrina “overstated and overplayed the amount of actual antisocial looting that occurred.”168 Grow Sun also notes that curfews and police sweeps can actually hinder disaster responses by making it harder to distinguish “between looting and legitimate activities undertaken to rescue survivors and to protect and preserve property.”169

Officials often end up using aggressive emergency tactics and undermining the public interest by accepting or amplifying myths of the amount of threatened violence or looting.170 Courts can play a role in protecting public rights by scrutinizing whether the danger of violence is real or imagined and by focusing on whether government curfew methods are actually furthering public safety or undermining it. Courts should be cautious about becoming policy makers, but they cannot abandon their interpretative responsibilities when constitutional rights are at stake. The same type of constitutional analysis should govern constitutional claims inside and outside the curfew context.

The empirical scholarship above shows that government officials often overreact during emergencies at the expense of individual liberty. Courts should temper this known tendency towards overreaction by applying more rigorous scrutiny to avoid unjustified burdens on fundamental rights. When a challenged curfew fails to meet the judicial standard of review it should be enjoined. In cases where a court is uncertain about the appropriateness of an injunction, a court can allow a curfew to go into effect but leave open the door to as-applied challenges. If a court finds that a curfew violated fundamental rights, then individuals have a right to compensation.171 Compensating victims is both the right thing to do and incentivizes government officials to more carefully safeguard individual rights in the future when imposing curfews. Thus, courts could allow government officials to engage in an “act first, compensate later” approach that lets officials act on the best information they have while remaining committed to individual rights. This approach is related to how courts can craft effective remedies to constitutional violations. It is also vital that courts later rule on the validity of a curfew under strict scrutiny so precedents can develop. Courts and officials will then have a greater body of case law in evaluating future emergency responses. Chalk Deference is flawed because victims will not be compensated and deference will not lead to an examination of whether particular curfews are sufficiently tailored. This lack of analysis of the right to travel stunts the development of law while failing to protect constitutional rights.

B.  Intermediate Scrutiny and General Curfews

Courts must distinguish between First Amendment and right to travel claims as intermediate scrutiny might be appropriate for some claims and not others. Many courts have focused on the First Amendment implications, but have neglected analyzing general curfews under a right to travel framework.

Under a First Amendment analysis, some courts have argued that general curfews regulate conduct and the ability to move during certain times, but not speech.172 When a regulation primarily targets conduct and incidentally burdens First Amendment rights, courts apply intermediate scrutiny.173 Intermediate scrutiny requires laws be content-neutral, narrowly tailored, and leave open ample alternative channels of communication.174 A general curfew applies to everyone and does not make content distinctions on its face. Whether a curfew is narrowly tailored will depend on the particular emergency’s circumstances. When civil disorder is more widespread, the government interest may require a more expansive curfew. A court may find that a particular curfew leaves open ample alternative channels for communication because the curfew is imposed at night and so individuals can speak and move during the day and use social media channels.175 The next section will argue, under First Amendment precedent, that strict scrutiny is the better standard of review rather than intermediate scrutiny.

Under a right to travel analysis, some courts also subject right to travel claims to intermediate scrutiny. The logic is that all laws that make travel more difficult are not abridgements of the right to travel. For instance, speed limits cut down the speed at which a person can travel, but there is not a serious argument that speed limits should be subject to strict scrutiny. Following this line of logic, all indirect burdens on the right to travel are not automatically suspect. Glenn Frese argued that the “riot curfew, when properly administered, does not unduly interfere with the constitutional rights of those upon whom it is imposed.”176 Therefore, courts can apply intermediate scrutiny to balance the government’s need to regulate in important areas without unduly burdening fundamental rights in the process.177 However, courts must determine what regulations are indirect burdens of travel rights and which are more direct abridgements. The next section will argue that strict, rather than intermediate scrutiny, is the more appropriate standard because general curfews directly abridge the right to travel.

C.  Why Strict Scrutiny Should Apply to General Curfews

1.  Travel abridgements

A general curfew order directly abridges the right to travel because it eliminates the ability to travel outside one’s home during certain hours, full stop. A curfew is not like a speed limit that slows the pace of travel, but rather is akin to a parking boot, a mechanism that completely arrests movement. A curfew directly targets travel because it completely forecloses the ability to travel to areas individuals have a right to enter absent the emergency declaration.

Courts applying intermediate scrutiny reason that curfews primarily target civil disorder and impose incidental regulations on travel. There is very minimal case law on the standard of review for right to travel cases in general. No court has explicitly applied intermediate scrutiny against a right to travel claim in a curfew context. The case law also does not indicate that intermediate scrutiny is the generally accepted standard in curfew contexts. The problem with intermediate scrutiny is that the curfew completely forecloses the ability to move and functions as a direct restraint rather than an indirect restraint on travel. If the government bans a controversial book to promote social order in society, we do not say that the regulation is incidental to speech suppression because its ultimate aim is to promote social order. The book ban completely stops the ability to exercise a right. Likewise, if a curfew completely suppresses travel to promote social order, we cannot classify it as an incidental restraint on travel because its ultimate aim is to promote social order. The loss of travel is an abridgement because individuals completely lose the ability to travel in certain contexts, just like a book ban completely stops the ability to read certain books. For these reasons, strict scrutiny is the most appropriate standard of review for right to travel claims.

2.  First Amendment abridgements

The strongest argument for why a general curfew should not be subject to intermediate scrutiny is that it fails to leave open ample alternative channels for expression, an independent requirement of all First Amendment intermediate scrutiny analysis.178 In City of Ladue v. Gilleo,179 the Supreme Court struck down an ordinance that banned homeowners from displaying any signs on their property, except certain kinds such as “for sale” signs.180 The Court found the law was not subject to intermediate scrutiny because it failed to provide ample alternative channels and “almost completely foreclosed a venerable means of communication that is both unique and important.”181 A curfew operates in a similar, and even more extreme, fashion. The ability to speak in traditional public forums is a “venerable means of communication” that is critical to public discourse, and speech in physical forums have powerful symbolic effects that are stronger than nonphysical forms of communication.182

In Gilleo, the regulation was subject to strict scrutiny even though a homeowner could post the same message on social media as on the sign or find another area to post signs.183 Analogously, a curfew should be subject to strict scrutiny even though people can speak through social media during the curfew or possibly speak during certain daylight hours. Curfews necessarily foreclose an entire medium for communication, so strict scrutiny should always apply.

Curfews also look very similar to a system of prior restraints where an individual is unable to exercise his or her fundamental rights unless they have permission from the government. One district court evaluated a curfew which prohibited travel in public areas where one way a citizen would be able to travel under the curfew was with “specific written permission from someone who is authorized to grant permission.”184 This standard carries forward echoes of licensing boards that had to approve publications before they went out to the public. Prior restraints in the speech context are subject to strict scrutiny and are viewed with extreme skepticism by courts.185 During a curfew, people cannot travel to or speak in public forums without permission from the government. Courts should be wary that curfews could be used as a mechanism for silencing protest, especially when a curfew is declared in response to a specific protest event.186 During BLM protests, officials declared curfews related to civil unrest associated with the protests.187 The concern is that curfews were deployed as a method of prior restraint that limited the protests from communicating their demands and grievances to society. Of course, many public officials declared curfews in good faith to address looting and violence associated with the protests, but strict scrutiny should be used so that courts ensure that curfews are targeting appropriate ends and not functioning as a tool of prior restraint against protest movements.

Finally, the Supreme Court has subjected otherwise content-neutral laws to strict scrutiny when the law has an extremely detrimental burden on group association. In NAACP v. Alabama ex rel. Patterson,188 the Court invalidated an Alabama requirement that the NAACP disclose all of the names and addresses of its members to the state.189 The requirement came from a facially neutral law that required disclosure of out-of-state corporate information.190 The Court found that the forced disclosure would have such a severe adverse effect on the NAACP’s associational rights that the state interest must be compelling.191 This was because disclosure of rank and file members in the Deep South would expose members to harassment and potentially even violence and would function as an “effective restraint” to associate in groups.192 The Court invalidated Alabama’s requirement because the state failed to advance a sufficiently compelling interest.193

Challengers to a general curfew can make a very close analogy to NAACP v. Alabama. Speech in traditional public forums is “undeniably enhanced by group association.”194 And general curfews, even if they are content-neutral, have such a severe adverse impact on physical assembly that they function as an effectively complete restraint on group association in public areas. Just as the Alabama requirement was content-neutral, a content-neutral general curfew should also be subject to strict scrutiny due to its substantial impact on associational rights. Some may argue that NAACP v. Alabama was unusual and applied only in an extreme circumstance. However, general curfews are only imposed in emergency circumstances. The use of general curfews are exceedingly rare in the United States.195 And general curfews impose extreme effects on speech rights that require the government to offer compelling reasons for their use. Thus, general curfews should be subject to strict scrutiny on First Amendment grounds.

V.  Conclusion

The general curfew is an extreme requirement imposed on civilian populations during times of emergency. They raise important constitutional concerns for the right to travel and gather in public forums.196 There is currently a circuit split on the standard of review when assessing the constitutionality of general curfew orders, and there is no current Supreme Court standard.197 The cases in which the courts employ deference, like Chalk and Hirayabashi, are miles apart from the scrutiny employed in Jefferey. Plus, the circuit split means the security of one’s constitutional rights in times of disaster hinge enormously on what circuit they happen to reside in. The Fourteenth Amendment was designed to offer federal security of constitutional rights across the country.198 The Supreme Court should fulfill this promise and eliminate this circuit split by addressing the issue.

General curfews have been applied across a range of recent emergency situations.199 This Comment contends that between the standards of Chalk Deference, intermediate scrutiny, and strict scrutiny, courts should subject general curfew orders to strict scrutiny. This Comment also argues that challenges to general curfews on right to travel grounds are a valid, but neglected, route for petitioners. The right to travel has a robust history and general curfews directly abridge the ability to engage in intrastate and interstate travel. The right to travel also provides an independent hook to apply strict scrutiny when a court determines that intermediate scrutiny applies on First Amendment grounds.

This Comment also argues that courts should not apply intermediate scrutiny to First Amendment challenges of general curfews. General curfews completely close off the ability to physically assemble in public forums and so fail to leave open ample alternative channels, such as in the Ladue case.200 And the restraint on speech and group association by curfews are such severe threats that even content-neutral curfews should require a compelling government justification when applying NAACP v. Alabama.201

This Comment does not argue that general curfews should always be invalidated. General curfews are often imposed during times of extreme disaster, emergency, or unrest where a government’s interests in limiting movement may be most compelling. However, strict scrutiny plays an indispensable role in safeguarding constitutional rights by ensuring that the government applies the least restrictive means to meet this interest. Sometimes that will mean that a curfew is a necessary and temporary tool that will satisfy strict scrutiny. Strict scrutiny is much more likely to be established when the government is responding in the face of fluid, unknown, and perilous circumstances. The Jeffery case in New York is a model opinion for how a court can uphold a curfew, but subject it to a careful assessment to respect constitutional rights.202 In other cases, courts will find that the government has overreached, especially when the government has failed to pursue less restrictive solutions.

Applying strict scrutiny is appropriate because it polices an extreme tool of disaster response that severely abridges travel and speech rights. Strict scrutiny still allows carefully applied executive action when compelling interests are at stake. Alternatively, if courts are unwilling to apply strict scrutiny, they should at least reject Chalk Deference and apply intermediate scrutiny. Acting in the face of disaster tends to focus the mind on immediate events, making it much more likely for government officials to underplay or ignore vital constitutional rights in the process. For these reasons, and amidst a timely circuit split, the Supreme Court should use an existing case to establish the standard of review for general curfews in advance of future disasters.

• 1See United States v. Chalk, 441 F.2d 1277 (4th Cir. 1971).
• 2See Smith v. Avino, 91 F.3d 105 (11th Cir. 1996).
• 3See 7020 Ent., LLC v. Miami-Dade Cnty., 519 F. Supp. 3d 1094 (S.D. Fla. 2021).
• 4See Hirabayashi v. United States, 320 U.S. 81 (1943).
• 5Glenn C. Frese, Comment, The Riot Curfew, 57 Cal. L. Rev. 450, 461 (1969).
• 6See Leah Reiss, Note, Freedom to Pray, Not to Protest, 107 Minn. L. Rev. 2285, 2298–99 (2023).
• 7Id.
• 8See Note, Judicial Control of the Riot Curfew, 77 Yale L.J. 1560, 1561 (1968) (“The imposition of curfews on entire urban populations is nearly unprecedented in American history.”).
• 9Reporters Committee Tracks Curfew Orders in Wake of Nationwide Protests, Reps. Comm. for Freedom Press (June 1, 2020), http‌s://www.rcfp.org/protest-curfew-order-tracker/ ‌[‌p‌e‌‌r‌m‌a‌.‌c‌c‌/‌8TRT-RAQG] (collecting cases).
• 10See Lawrence O. Gostin & James G. Hodge Jr., US Emergency Legal Responses to Novel Coronavirus: Balancing Public Health and Civil Liberties, 323 JAMA 1131, 1131–32 (2020).
• 11Jack Arnholz, Ivan Pereira & Christina Carrega, US Protests Map Shows Where Curfews and National Guard Are Active, ABC News (June 4, 2020), https://abcnews.go.com/US/locations-‌g‌e‌orge-floyd-protests-curfews-national-guard-deployments/story?id=70997568 [perma.cc/F7VP-‌Z‌Q‌‌5‌X‌].
• 12Id.
• 13See Associated Press, Los Angeles Mayor Lifts Downtown Curfew She Imposed During Protests Against Immigration Raids, NBC News (June 18, 2025), https://www.nbcnews.com/news/us-‌n‌e‌w‌s/los-angeles-mayor-lifts-downtown-curfew-imposed-protests-immigration-r-rcna213675‌[‌p‌e‌r‌‌m‌‌‌‌‌‌‌a‌.cc/C7VR-ZS8V].
• 14See G. Edward White, Historicizing Judicial Scrutiny, 57 S.C. L. Rev. 1, 2 (2005) (noting the level of scrutiny is the “essential first step” of constitutional analysis and “often the crucial factor driving the analysis”).
• 15Compare Smith v. Avino, 91 F.3d 105 (11th Cir. 1996) (deferential scrutiny), with Menotti v. City of Seattle, 409 F.3d 1113 (9th Cir. 2005) (intermediate scrutiny), and Jeffery v. City of New York, 113 F.4th 176, 178 (2d Cir. 2024), cert. denied, 145 S. Ct. 1174 (2025) (strict scrutiny).
• 16See Hirabayashi v. United States, 320 U.S. 81, 83 (1943).
• 17See Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 600 U.S. 181, 206 (2023).
• 18There is an extensive literature on juvenile curfews and the standard of review in this domain is unsettled. See generally David A. Herman, Note, Juvenile Curfews and the Breakdown of the Tiered Approach to Equal Protection, 82 N.Y.U. L. Rev. 1857 (2007). This Comment will not assess juvenile curfews in detail because the age of juveniles may raise unique constitutional issues. See Hutchins v. District of Columbia, 188 F.3d 531, 539 (D.C. Cir. 1999) (“That the rights of juveniles are not necessarily coextensive with those of adults is undisputed.”). Nonetheless, many of the arguments advanced in this Comment can be applied to the juvenile curfew context.
• 19See Karen J. Pita Loor, When Protest Is the Disaster: Constitutional Implications of State and Local Emergency Power, 43 Seattle U. L. Rev. 1, 13–14 (2019).
• 20E.g., Sterling v. Constantin, 287 U.S. 378, 398 (1932) (“When there is a substantial showing that the exertion of state power has overridden private rights secured by that Constitution, the subject is necessarily one for judicial inquiry in an appropriate proceeding directed against the individuals charged with the transgression.”).
• 21See Lutz v. City of York, 899 F.2d 255, 260–61 (3d Cir. 1990) (collecting cases).
• 22E.g., U.S. Const. art. IV, § 2, cl. 1 (“The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”); id. amend. XIV, § 1 (“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”).
• 236 F. Cas. 546 (C.C.E.D. Pa. 1823) (No. 3230).
• 24Id. at 551.
• 25Id. at 552.
• 26William Baude, Jud Campbell & Stephen E. Sachs, General Law and the Fourteenth Amendment, 76 Stan. L. Rev. 1185, 1191 (2024).
• 27Id. (emphasis in original).
• 28Id. at 1194.
• 29See Richard Sobel, The Right to Travel and Privacy: Intersecting Fundamental Freedoms, 30 J. Marshall J. Info. Tech. & Priv. L. 639, 641–49 (2014).
• 30Baude et al., supra note 26, at 1189.
• 31See id. at 1206.
• 32See 2 The Reconstruction Amendments: The Essential Documents 187–88 (Kurt Lash ed. 2021).
• 33Id.
• 34Baude et al., supra note 26, at 1212–22.
• 35526 U.S. 489 (1999).
• 36Id. at 498.
• 37394 U.S. 618 (1969).
• 38Id. at 629.
• 39383 U.S. 745 (1966).
• 40Id. at 757.
• 41See United States v. Wheeler, 254 U.S. 281, 293 (1920) (“In all the states, from the beginning down to the adoption of the Articles of Confederation the citizens thereof possessed the fundamental right, inherent in citizens of all free governments, peacefully to dwell within the limits of their respective States, to move at will from place to place therein, and to have free ingress thereto and egress therefrom.”); see also Sobel, supra note 29, at 641–49.
• 42597 U.S. 215 (2022).
• 43Id. at 231 (citing Washington v. Glucksberg, 521 U.S. 702, 721 (1997)).
• 44Magna Carta, 1215, Nat’l Archives, https://www.nationalarchives.gov.uk/education/re‌s‌o‌u‌r‌c‌es/magna-carta/british-library-magna-carta-1215-runnymede/ [perma.cc/Z3QT-CCXU].
• 45Sobel, supra note 29, at 641.
• 46Articles of Confederation of 1781, art. IV.
• 47In his Dobbs concurrence, Justice Kavanaugh also poses that a state cannot bar a woman from traveling to another state to obtain an abortion due to the “constitutional right to interstate travel.” See Dobbs, 597 U.S. at 346 (Kavanaugh, J., concurring).
• 48See id. at 263–64.
• 49See id.
• 50See id.
• 51Brown v. Bd. of Educ., 349 U.S. 294 (1955) is one such example overruling clearly erroneous precedent.
• 52See, e.g., U.S. Const. amend. I; Gitlow v. New York, 268 U.S. 652, 666 (1925).
• 53See Hague v. Comm. for Indus. Org., 307 U.S. 496, 515 (1939).
• 54See U.S. Const. amend. XIV. The state action requirement derives from the amendment’s requirement that “[n]o State shall make or enforce any law which shall abridge the privileges and immunities of citizens . . . .” Id.
• 55See Washington v. Davis, 426 U.S. 229, 238 (1976).
• 56See Linda Poon, The Racist History of Curfews in America, Bloomberg (June 18, 2020), https://www.bloomberg.com/news/articles/2020-06-18/the-racist-history-of-curfews-in-america [perma.cc/5KVH-26BD].
• 57Accord Yick Wo v. Hopkins, 118 U.S. 356 (1886); Gomillion v. Lightfoot, 364 U.S. 339 (1960); Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266–68 (1977) (listing factors that suggest discriminatory intent, including level of disparate impact, historical background, contemporary statements by key decision makers, and departures from ordinary procedures). Importantly, the disparate effects must be extreme and these cases are unusual.
• 58429 U.S. 252 (1977).
• 59Id. at 266–68.
• 60Kolender v. Lawson, 461 U.S. 352, 358 (1983); see also Shuttlesworth v. City of Birmingham, 382 U.S. 87, 90 (1965) (invalidating an ordinance where individuals could be stopped from walking and loitering on the streets “only at the whim of any police officer”).
• 61320 U.S. 81 (1943).
• 62Id. at 83.
• 63Id. at 84.
• 64Id. at 93.
• 65Id. at 95.
• 66Hirabayashi, 320 U.S. at 99.
• 67Id. at 101.
• 68441 F.2d 1277 (4th Cir. 1971).
• 69Id. at 1278.
• 70Id. at 1280–81.
• 71Id. at 1283.
• 72Chalk, 441 F.2d at 1282.
• 73Id. at 1281.
• 74Id. at 1280.
• 7591 F.3d 105 (11th Cir. 1996).
• 76Id.
• 77Id. at 108.
• 78Id. at 108–09.
• 79Id. at 109.
• 80Id.
• 81Smith, 91 F.3d at 109.
• 82See 7020 Ent., LLC v. Miami-Dade Cnty., 519 F. Supp. 3d 1094, 1104 (S.D. Fla. 2021) (citing Smith, 91 F.3d at 109).
• 83See generally Kevin A. Borden & Susan L. Cutter, Spatial Patterns of Natural Hazards Mortality in the United States, Int’l J. Health Geographics, Dec. 17, 2008, at 1.
• 84See Menotti v. City of Seattle, 409 F.3d 1113, 1117 (9th Cir. 2005) (applying intermediate scrutiny to a First Amendment claim).
• 85See Lutz v. City of York, 899 F.2d 255, 256 (3d Cir. 1990) (applying intermediate scrutiny to a right to travel claim).
• 86409 F.3d 1113 (9th Cir. 2005).
• 87Id. at 1117.
• 88Id.
• 89Id. at 1130–31 (citing Ward v. Rock Against Racism, 491 U.S. 781, 799 (1989)).
• 90No. 6:20-CV-01265-MK, 2023 WL 3903751 (D. Or. May 24, 2023).
• 91Id. at *5.
• 92Id.
• 93Id.
• 94Id.
• 95Boudjerada, No. 6:20-CV-01265-MK, 2023 WL 3903751 at *9.
• 96Id.
• 97Id. at *10 (emphasis in original).
• 98562 F. Supp. 3d 382 (N.D. Cal. 2021).
• 99Id. at 400.
• 100Id. at 401.
• 101Id.
• 102Id.
• 103NAACP of San Jose, 562 F. Supp. 3d at 405.
• 104Id.
• 105It is also possible that the district was merely holding that the plaintiff failed to adequately plead the claim and not that the underlying claim fails to exist.
• 106See supraSection II.A.
• 107See NAACP of San Jose, 562 F. Supp. 3d at 401.
• 108Id. at 405.
• 10977 F.4th 691 (D.C. Cir. 2023).
• 110Id. at 695.
• 111Id. at 698.
• 112Id. at 699.
• 113Id.
• 114Tinius, 77 F.4th at 700–02.
• 115Id. at 702.
• 116Id. at 698.
• 117Id. at 707.
• 118899 F.2d 255 (3d Cir. 1990).
• 119Id. at 256.
• 120Id.
• 121See Jeffery v. City of New York, 113 F.4th 176, 194 (2d Cir. 2024).
• 122353 F.3d 171, 172 (2d Cir. 2003).
• 123Id.
• 124Id. at 176.
• 125Id. (citing King v. New Rochelle Mun. Hous. Auth., 442 F.2d 646, 648 (2d Cir. 1971)).
• 126Id.
• 127Jeffery, 113 F.4th at 178.
• 128Id.
• 129Id. at 194.
• 130Id. at 197.
• 131Id. at 195–99.
• 132310 F.3d 484 (6th Cir. 2002).
• 133Id. at 487.
• 134Id. at 498.
• 135Id. at 506.
• 136448 F.2d 245 (6th Cir. 1971).
• 137Id. at 246.
• 138Id. at 248.
• 139Id. at 249.
• 140See United States v. Chalk, 441 F.2d 1277, 1281 (4th Cir. 1971).
• 141Id.
• 142Eric A. Posner & Adrian Vermeule, Accommodating Emergencies, 56 Stan. L. Rev. 605, 606 (2003).
• 143ACLU of W. Tenn. v. Chandler, 458 F. Supp. 456, 457 (W.D. Tenn. 1978).
• 144Id. at 460.
• 145Id. at 461.
• 146Id.
• 147323 U.S. 214 (1944).
• 148Trump v. Hawaii, 585 U.S. 667, 710 (2018).
• 149Id. at 710.
• 150Id.
• 151Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 600 U.S. 181, 206 (2023).
• 152Trump, 585 U.S. at 684.
• 153See generally Neal Kumar Katyal, Trump v. Hawaii: How the Supreme Court Simultaneously Overturned and RevivedKorematsu, 128 Yale L.J.F. 641 (2019).
• 154See generally Lindsay F. Wiley & Stephen I. Vladeck, Coronavirus, Civil Liberties, and the Courts: The Case Against “Suspending” Judicial Review, 133 Harv. L. Rev. F. 179, 182 (2020).
• 155United States v. O’Brien, 391 U.S. 367, 383 (1968).
• 156Trump v. United States, 603 U.S. 593, 618 (2024) (“[C]ourts may not inquire into the President’s motives. Such an inquiry would risk exposing even the most obvious instances of of­ficial conduct to judicial examination on the mere allegation of improper purpose, thereby intruding on the Article II in­terests that immunity seeks to protect.”).
• 157From John Adams to Thomas Jefferson, 2 February, 1816, Nat’l Archives, https://founde‌r‌s‌.archives.gov/documents/Adams/99-02-02-6575 [perma.cc/6WQM-WECX].
• 158Examples include when an official aims to suppress speech based on an improper motive or acts with invidious intent to engage in racial discrimination.
• 159See generallyJamal Greene, The Anticanon, 125 Harv. L. Rev. 379 (2011).
• 160See generally Geoffrey R. Stone, Perilous Times: Free Speech in Wartime (2004).
• 161Id.
• 162Cf. W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943) (invalidating compelled recitations of the pledge of allegiance in public school); Texas v. Johnson, 491 U.S. 397 (1989) (invalidating laws banning the burning of the American flag).
• 163James Weinstein & Ivan Hare, General Introduction: Free Speech, Democracy, and the Suppression of Extreme Speech Past and Present, in Exteme Speech and Democracy 1, 5 (2009).
• 164Mitchell F. Crusto, State of Emergency: An Emergency Constitution Revisited, 61 Loyola L. Rev. 471, 501 (2015).
• 165Id. at 486.
• 166Id. at 501–02.
• 167Id.at 503.
• 168Lisa Grow Sun, Disaster Mythology and the Law, 96 Cornell L. Rev. 1131, 1146 (2011).
• 169Id. at 1175.
• 170Id. at 1146.
• 171See 42 U.S. § 1983. Recovery may be limited against municipalities under Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978), and against individual law enforcement officers under qualified immunity. See Pearson v. Callahan, 555 U.S. 223 (2009). These immunity doctrines can impede recovery for constitutional violations and should also be criticized for deviating from the text and original understanding of both the Constitution and § 1983. See generally William Baude, Is Qualified Immunity Unlawful?, 106 Cal. L. Rev. 45 (2018).
• 172See Menotti v. City of Seattle, 409 F.3d 1113, 1130–31 (9th Cir. 2005) (applying intermediate scrutiny for a regulation incidentally burdening speech and assembly).
• 173Id.
• 174Id.
• 175For an example see id. (finding ample alternative channels in the face of a curfew declaration).
• 176Frese, supra note 5, at 452. It is not clear Frese is arguing for an intermediate standard of review in all curfew cases.
• 177See Lutz v. City of York, 899 F.2d 255, 256 (3d Cir. 1990) (applying intermediate scrutiny for a regulation incidentally burdening travel, but where the regulation was not a curfew).
• 178See Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984).
• 179512 U.S. 43 (1994).
• 180Id. at 45.
• 181Id. at 54.
• 182See Alec Greven, First Amendment Rights on Trial: A Critique of the Time, Place, and Manner Doctrine, 77 Okla. L. Rev. 285, 291–97 (2025).
• 183Gilleo, 512 U.S. at 54.
• 184Embry v. City of Cloverport, No. 3:02CV-560-H, 2004 WL 191613, at *4 (W.D. Ky. Jan. 22, 2004).
• 185See Near v. Minnesota ex rel. Olson, 283 U.S. 697, 713 (1931).
• 186See Loor, supranote 19, at 7.
• 187Id. at 10–12.
• 188357 U.S. 449 (1958).
• 189Id. at 451.
• 190Id.
• 191Id. at 463.
• 192Id. at 462.
• 193Patterson, 357 U.S. at 466.
• 194Id. at 460.
• 195See Judicial Control of the Riot Curfew, supra note 8, at 1563.
• 196See supra Part I.
• 197See supra Part II.
• 198See generally Baude et al., supra note 26.
• 199See NAACP of San Jose/Silicon Valley v. City of San Jose, 562 F. Supp. 3d 382, 389 (N.D. Cal. 2021); 7020 Ent., LLC v. Miami-Dade Cnty., 519 F. Supp. 3d 1094, 1097 (S.D. Fla. 2021); Boudjerada v. City of Eugene, No. 6:20-CV-01265-MK, 2023 WL 3903751, at *1 (D. Or. May 24, 2023); see also Reporters Committee Tracks Curfew Orders in Wake of Nationwide Protests, supra note 9 (curfew in response to civil unrest); see also Gostin & Hodge, supra note 10, at 1131–32 (curfew in response to a global pandemic).
• 200City of Ladue v. Gilleo, 512 U.S. 43, 43 (1994); see also Greven, supra note 182.
• 201NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 449 (1958).
• 202See Jeffery v. City of New York, 113 F.4th 176, 200 (2d Cir. 2024).